Earlier this month, a bill was introduced in the Kentucky State Legislature (H.B. 205 (Ky. 2009)) to establish certain procedures in civil actions that arise out of exposure to silica and mixed dust. H.B. 205 requires, for example, that a “physical impairment” be an essential element of the case. To satisfy this prima facie requirement, the plaintiff must show that the exposure to silica or mixed dust is the predominant cause of the physical impairment. This can only be accomplished filing a written medical report and supporting test results within 30 days after the Complaint has been filed. Within 120 days after the written report and test results are filed, the defendant may challenge the adequacy of those filings. The bill also tolls the statute of limitations period until such time as the individual knows or should have known of the physical impairment, as described above. Nonmalignant conditions are also clearly distinguished from related cancer claims in the bill. Finally, the bill as introduced establishes certain requirements for wrongful death claims.

The bill also provides some safeguards to premises owners. For instance, a premises owner that hired a contractor prior to January 1, 1972, shall not be liable for any injury resulting from silica or mixed-dust exposure which was caused by the contractor’s employees or agents on the premises owner’s property, unless the premises owner directed the activity that resulted in the injury or gave or denied permission for the critical acts that led to the individual’s injury. If the alleged exposure to silica or mixed dust occurred after January 1, 1972, a premises owner shall not be liable for any injury resulting from said exposure caused by a contractor’s employee or agent on the premises owner’s property, unless it can be established that the premises owner intentionally violated an established safety standard that was in effect at that time, that the alleged violation was in the plaintiff’s breathing zone and it was the proximate cause of the plaintiff’s injury.

Click on "Download PDF" to view a copy of HB 205.

For futher information, please contact Craig T. Liljestrand or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.